Re: Natalia Quintana

Re: NATALIA QUINTANA IRT Reference No. N93/01463 #NUMBER 3772 Number of pages –7 Class 812 (December 1989 (Permanent)) Entry Permit

IMMIGRATION REVIEW TRIBUNAL
J. METLEDGE (Member)

ORDER

The Tribunal affirms the decision refusing the grant of a Class 812 (December 1989 (permanent)) entry permit to the Principal.

JUDGE1

J. METLEDGEThis is a review of a decision refusing the grant of a Class 812 (December 1989 (permanent )) entry permit to the Principal Ms Natalia Quintana. The original application was lodged in Sydney on 12 February 1993 and a decision refusing the application was made by the delegate of the Minister for Immigration and Ethnic Affairs (the Department) on 23 August 1993. The application for review was made to the Tribunal on 20 September 1993 by the Applicant, Mrs Cynthia "Macabenta". The relation of the Applicant to the Principal is that of nominator and daughter.

2. The Principal was born on 1 December 1925 and is a citizen of Philippines.

3. The Principal arrived in Australia on 6 February 1989. The class of visa held by the Principal was visitor. The expiry date of the last entry permit granted was 19 August 1989. After this date, no further entry permit was granted to the Principal who consequently became an illegal entrant.

4. The criteria to be satisfied by migration applications lodged on or after 1 February 1993 are contained in the Migration (1993) Regulations which repealed the Migration (1989) Regulations. The Regulations which are applicable to this case are the Migration (1993) Regulations (hereinafter called the Regulations).

5. In order to determine the entitlement of any applicant to a visa or entry permit the Tribunal must have regard to the provisions of the Migration Act 1958 (the Act) and the Regulations. The Regulations provide for classes of visas and entry permits and prescribe criteria which have to be met before an applicant becomes entitled to a visa or entry permit. Non-citizens who wish to travel to Australia must hold a valid visa. Holders of a valid visa may travel to a landing place in Australia, such as an airport, but may not leave the airport. Such persons require the grant of a valid entry permit on arrival to enable them to enter and remain legally in Australia. The Regulations provide for the grant of permanent visas and entry permits and temporary visas and entry permits.

6. There are prescribed criteria, such as health and public interest criteria, which apply to all classes of visas and entry permits. The Regulations also prescribe additional criteria which are applicable to a particular class of visa or entry permit. The Tribunal will generally first examine whether the additional criteria for the particular class of visa or permit are satisfied, because if these criteria are not satisfied then there will be no need to further consider whether other prescribed criteria are satisfied.

7. In determining facts as they existed at the date of application the Tribunal may take account of later facts in so far as these throw light on the situation as it existed at the earlier date. In Bretag v Immigration Review Tribunal and Minister for Immigration, Local Government and Ethnic Affairs (unreported, No. SG 72 of 1991, 29 November 1991) the Federal Court held that the Tribunal may have regard to subsequent history in determining a question of fact at the time of application, so long as it tends logically to show the existence or non-existence of facts relevant to the issue to be determined, quoting from Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J.

8. In reaching its decision the Tribunal is bound by the relevant legislation and applies relevant government policy. General policy guidelines are applied by the Tribunal unless there are cogent reasons to the contrary. General policy directions issued by the Minister pursuant to section 179 of the Act are applied wherever they are relevant. (See generally Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634 and Ali v Minister for Immigration, Local Government and Ethnic Affairs (1992) 38 FCR 144.

9. With regard to the onus of proof issue which arises in this type of case, while there is no legal onus on applicants to give sufficient evidence to prove their claims, it is nevertheless in applicant interest to make any evidence in their knowledge available to the decision-maker. This is so because if at the end of the review the Tribunal is uncertain or unable to decide that on the balance of probabilities sufficient evidence exists to entitle an applicant to a visa or entry permit, it must decide against the applicant.

10. To be entitled to the grant of this entry permit, the Principal must satisfy the relevant criteria set out in Part 812 of schedule 2 of the Regulations which, so far as relevant, provides as follows:

812. 72Criteria to be satisfied at time of application (entry permit –after entry)

812. 721If the applicant is an illegal entrant, the applicant satisfies illegal entrant criteria 6001 and 6002.

812. 722The applicant:

(a)was a prohibited non-citizen on or before 18 December 1989; and

(b)was in Australia on, and has not left Australia since, 18 December 1989; and

(c)applies before 19 December 1993 for the entry permit; and

(d)has been nominated by the relevant related person referred to in clause 812.723 (2), (3), (4), (5) or (6), as the case requires; and

(e)notifies Immigration, without unreasonable delay, of each change of the applicant's residential address.

812. 723

(1)The applicant satisfies the requirements of subclause (2), (3), (4), (5) or (6)

(2)An applicant satisfies the requirements of this subclause if he or she is in a relationship that is both genuine and continuing, that began on or before 15 October 1990, as the spouse of an Australian citizen or Australian permanent resident.

(3)An applicant satisfies the requirements of this subclause if he or she has, since 15 October 1990, been the dependent child of an Australian citizen or an Australian permanent resident.

(4)An applicant satisfies the requirements of this subclause if:

(a)the applicant has been, since 15 October 1990, an aged parent of an Australian citizen or an Australian permanent resident; and

(b)on 15 October 1990 and continuously since that date the applicant satisfied the balance of family test in 1.5.

(5)An applicant satisfies the requirements of this subclause if on 15 October 1990 and continuously since that date, the applicant was:

(a)an aged dependent relative: or

(b)an orphan relative; or

(c)a special need relative; or

(d)a remaining relative; of a settled Australian citizen or of a settled Australian permanent resident.

(6)An applicant satisfies the requirements of this subclause if, subject to subclause (7):

(a)there was, on 15 October 1990, any compassionate ground (other than the grounds mentioned in subclauses (1) to (5)) for the grant to the applicant of an entry permit, to the effect that refusal to grant the entry permit would have caused extreme hardship or irreparable prejudice to an Australian citizen or an Australian permanent resident; and

(b)the compassionate ground continues to exist.

(7)For the purposes of subclause (6), "compassionate ground" does not include a circumstance that results directly from an event of a political nature only that occurred in the applicant's country of citizenship or of usual residence.

812. 73Criteria to be satisfied at time of decision (entry permit-after entry)

Index Terms:Irish nationals;Immigration policy;Refugee status determination procedure/ Membership of a particular social group;Political opinion;Well-founded fear of persecution use 812.723; and Index Terms:Chinese;Political asylum;Political opinion;Membership in particular social group;Well-founded fear of persecution ess. Index Terms:Iranians;Convention refugees;Illegal entry;Immigration officer;Political asylum List 2">812.734If so requested by the minister, an assurance of support in relation to the applicant has been givIndex Terms:Constitutional law;Iranians;Refugee status;Procedural requirements;Illegal entry family unit of the applicant who is an applicant for a Class 812 entry permit satisfies public interest criteria 4001 to 4004 and 4007 to 4009. Index Terms:Irish nationals;Immigration policy;Refugee status determination procedure/ Membership of a particular social group;Political opinion;Well-founded fear of persecution nd Index Terms: Chinese;Political asylum;Political opinion;Membership in particular social group;Well-founded fear of persecution erson to undergo assessment in relation to those criteria. Index Terms:Iranians;Convention refugees;Illegal entry;Immigration officer;Political asylum hts of any person who has custody or guardianship or, or access to, a dependent child of the applicant.. Index Terms: Constitutional law;Iranians;Refugee status;Procedural requirements;Illegal entry to the effect that refusal to grant the entry permit would cause extreme hardship or reparable prejudice to an Australian citizen or an Australian permanent resident. This must have been in eIndex Terms:Citizenship and Immigration Status;exclusion clause;Military service;Degree of complicity;Forced conscription;crimes against humanity;standard of proof ble prejudice. In these cases, the Tribunal has resorted to the Concise Oxford Dictionary for a definition of these words which were carefully chosen by the legislature. This is to enable the Tribunal to give the words their as injury, detriment and irreparable is defined as that cannot be rectified or made good. The Minister, acting under section 179 of the Act, put out a Policy Direction dated 29 January 1993, which Index Terms:Sri Lanka;Tamils;Citizenship and immigration;Convention refugees;U.N. Convention on status of refugees, Art. 1(F)(a);Standard of proof;Crimes against humanity ocal Government and Ethnic Affairs, supra. Index Terms:Sri Lanka;Tamouls;Citoyenneté et Immigration; Réfugiés au sens de la Convention;art. 1Fa) de la Convention des N.U. relative au statut des réfugiés;preuve selon la prépondérance des probabilités;crimes contre l'humanité hese grounds cannot be met in this case. Briefly this is because as at 15 October 1990 the principal was married and could not pass the balance of family test, only one of heIndex Terms:Aliens;Fear of persecution;Immigration;Refugees;Panama;Jurisdiction of Refugee Board to reconvene hearing;Evidence of political changes D:"Heading 1">EVIDENCE AND FINDINGS Index Terms:Nicaraguans;Judicial review;Convention refugee;Family members;deserters;Sandinistas;well-founded fear of persecution;political opinion;membership in a particular social group ralia with her husband as a visitor on 6 February 1989. She overstayed her last entry permit which expired on 19 August 1989. She has not departed Australia since then. Index Terms:United Kingdom;Northern Ireland;Husband and wive;senior immigration officer;Convention refugees;convictions for several minor offences;Irish National Liberation Army; Index Terms:Ireland;United Kingdom;Males;Agents of persecution;Arbitrary arrest and detention;Exclusion clauses;Legal decisions;Persecution for political opinion;Political activities;Procedural requirements PS:List>18.The evidence is that the Principal looks after the children and helps around the house while the Applicant and her husband are working. Index Terms:Somalia;Males;Agents of persecution;Change of circumstances in home country;Civil war;Civil and political rights;Country of origin conditions;Ethnic persecution;Ethnic conflict;Exclusion clauses;Human rights;Human rights violations;Internal flight alternative;Judicial system;Legal decisions;Persecution for political opinion;Political opinion;Political activities;Post-flight reasons for persecution;Standard of proof. f age, married with six children ranging from fifteen years old to eleven months old.

2. My mother looks after my children when I am working. She has done this since 1990.

3. Both my husband and I work during the day.

4. If she leaves I will have to support her financially and I would be worried about her welfare.

5. She helps me and my two brothers and one sister who live in Australia.

6. If she leaves, financially I can't afford a baby sitter so I would have to stop work. This also applies to my sister and my sister-in-law.

7. My job is selling insurance and I work in different areas. My husband sells chemicals and he works in the Eastern Suburbs.

21. The Principal gave evidence to the following effect:

1. I take care of my grandchildren. I also do the cooking and I help around the house.

2. If I left Australia my daughter will not be able to work.

3. My daughter supports us and if she is not working she will not be able to do this.

4. In the Philippines, the food is very expensive. We will not be able to buy the proper food.

5. We go to church every Sunday in Australia. In the Philippines we cannot do this because we live too far from the church.

22. The Tribunal found the witnesses in the main honest and truthful.

23. Based on the evidence the Tribunal accepts that there is a close family relationship between the Applicant and the Principal and that the Principal helps look after the children of the Applicant.

24. The Tribunal also accepts that the departure of the Principal will cause some hardship to the Applicant who will suffer some emotional sadness at seeing a close relative depart this country and losing her companionship as well as losing the benefit of the domestic help provided by the Principal.

25. However, the Tribunal does not accept that the relationship of the parties is such, or that the Applicant is so dependent on the Principal, that the departure of the Principal would cause the Applicant either extreme hardship or irreparable prejudice. After all the Applicant is in no different a position to any other mother with six children living in this country and coping without the benefit of domestic help.

26. After considering the evidence in accordance with the relevant legislation and in the light of government policy the Tribunal is of the opinion that the departure of the Principal would not cause extreme hardship or irreparable prejudice to an Australian citizen or permanent resident. There may be some hardship or prejudice suffered but not such that it could be considered as extreme or irreparable respectively. To meet the criteria of regulation 131A any hardship or prejudice suffered must be of the utmost nature or beyond repair respectively. These are very severe criteria and the Tribunal, on balance, finds that there is insufficient evidence to show that the departure of the Principal as at 15 October 1990 and continuing would have caused hardship or prejudice to the Applicant or any other Australian citizen or Australian permanent resident, beyond the concern, love and affection that members of a family or close friends have for each other. These human feelings and emotions by themselves do not amount to extreme hardship or irreparable prejudice sufficient to excite compassion and thereby invoke the application of the compassionate ground.

27. The facts of this case fall short of meeting the criteria for this entry permit and the Tribunal has no discretion to waive their strict application. Furthermore, there is nothing in the file or in the submissions to suggest, nor did it become apparent during the review, that the Principal might have grounds to apply for an entry permit of the same or a different class so as to enable the Tribunal to invoke the so-called aggregation provision of section 121 of the Act and to afford the Principal an opportunity to make a new application. Accordingly, the Tribunal has no option but to affirm the original decision.

28. There may be other criteria on which this application will also fail but it has not been necessary to consider them.

29. The Tribunal, while coming to the conclusion that the Principal is not entitled to the entry permit, nevertheless understands the difficulties faced by the parties because of the circumstances in which they find themselves. However, the Tribunal has no discretion in this matter but must strictly apply the relevant criteria in the Regulations.

DECISION

30. The Tribunal affirms the decision refusing the grant of a Class 812 (December 1989 (permanent)) entry permit to the Principal.